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EXHIBIT 10.42
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
OF
CORPORATE PROPERTY INVESTORS
------------------------------------------------
STATEMENT OF AMENDMENTS
EFFECTIVE AS OF JULY 1, 1998
1. The penultimate sentence of Section 5.2(b) is replaced
by the following:
"Such election may be made at the time the Executive becomes a
Participant or at any time thereafter; provided, however, that no such
election shall require payment prior to 1999 or be effective unless it
is made (i) at least 12 months prior to his or her Termination of
Service or (ii) prior to August 31, 1998, and within a calendar year
prior to the calendar year in which the distribution or commencement of
distributions of his or her Investment Credits would otherwise occur
without regard to the new election. The foregoing advance election
requirements shall not apply in the event Termination of Service is by
reason of death."
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2. Article VII is amended to read as follows:
"The Committee may, in its absolute discretion, without
notice, at any time and from time to time, modify or amend, in whole or
in part, any or all of the provisions of the Plan, or suspend or
terminate it entirely, provided, that no such modification, amendment,
suspension or termination may, without his consent, apply to or affect
the payment or distribution to any Participant or adversely affect the
rights of any Participant with respect to benefits accrued under the
Plan prior to the effective date of such modification, amendment,
suspension or termination, including but not limited to, the right to
any Investment Option or to any Investment Credits credited to him
prior to the effective date of such modification, amendment, suspension
or termination."
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EXHIBIT 10.42
================================================================================
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
OF
CORPORATE PROPERTY INVESTORS
Effective as of August 1, 1997
================================================================================
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INDEX
Page
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PREAMBLE ................................................................. 1
ARTICLE I - Definitions
Section 1.1. "Board of Trustees" .............................. 2
Section 1.2. "Code" ........................................... 2
Section 1.3. "Committee" ...................................... 2
Section 1.4. "Compensation" ................................... 2
Section 1.5. "Contribution Date" .............................. 3
Section 1.6. "Deferred Remuneration Plan" ..................... 3
Section 1.7. "Determination Date" ............................. 3
Section 1.8. "Executive" ...................................... 4
Section 1.9. "Insurance" ...................................... 4
Section 1.10. "Investment Credits" ............................. 4
Section 1.11. "Investment Options" ............................. 4
Section 1.12. "Quarter" ........................................ 4
Section 1.13. "Participant" .................................... 5
Section 1.14. "Plan" ........................................... 5
Section l.15. "SEPP" ........................................... 5
Section 1.16. "Termination of Service" ......................... 5
Section 1.17. "Trust" .......................................... 5
Section 1.18. "Year" ........................................... 5
ARTICLE II - PARTICIPATION ............................................... 5
ARTICLE III - CONTRIBUTIONS AND ACCOUNTS
Section 3.1. Contributions .................................... 6
Section 3.2. Investment of Contributions ...................... 8
Section 3.3. Distributions .................................... 8
ARTICLE IV - ACCOUNTS
Section 4.1. Investment Credits ............................... 8
Section 4.2. Changes in Investments ........................... 10
Section 4.3. Committee Discretion . ........................... 10
ARTICLE V - VESTING AND DISTRIBUTIONS
Section 5.1. Vesting .......................................... 11
Section 5.2. Distribution ..................................... 11
Section 5.3. Committee Discretion ............................. 13
Section 5.4. Death Benefits ................................... 13
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Page
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ARTICLE VI - ADMINISTRATION
Section 6.1. Committee ........................................ 14
Section 6.2. Rules ............................................ 14
Section 6.3. Authority of the Committee ....................... 14
Section 6.4. Acknowledgments and Distributions ................ 15
Section 6.5. Legal Counsel .................................... 15
Section 6.6. Incompetency ..................................... 15
ARTICLE VII - AMENDMENT AND TERMINATION .................................. 16
ARTICLE VIII - GENERAL PROVISIONS
Section 8.1. Funding .......................................... 17
Section 8.2. No Guarantee of Employment ....................... 17
Section 8.3. Nonalienation .................................... 17
Section 8.4. Applicable Law ................................... 19
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AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
OF
CORPORATE PROPERTY INVESTORS
EFFECTIVE AS OF AUGUST 1, 1997
PREAMBLE
Corporate Property Investors established its Supplemental Executive
Retirement Plan of Corporate Property Investors effective January 1, 1993, in
order to provide benefits to selected executives that are supplemental to the
benefits provided under the Corporate. Property Investors Simplified Employee
Pension Plan.
Said Plan is intended to be an unfunded plan maintained primarily
for the purpose of providing deferred compensation for a select group of
management or highly compensated employees as described in Section 201(2) of the
Employee Retirement Income Security Act of 1974, as amended.
Said Plan was amended and restated effective January 1, 1996, with
retroactive effect to January 1, 1993, to clarify the calculation of benefits
under said Plan if not all amounts payable with respect to a particular calendar
year are actually paid in such year. Said Plan was further amended and restated
effective August 1, 1997, to permit more frequent investment elections.
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ARTICLE I
DEFINITIONS
1.1. "Board of Trustees" means the board of trustees of the Trust.
1.2. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
1.3. "Committee" means the Compensation Committee of the Board of
Trustees.
1.4. "Compensation" for any Year means the wages, salaries, fees for
professional services and other amounts received by a Participant, regardless of
when received, for personal services actually rendered in such Year in the
course of such Participant's employment with the Employer, determined prior to
reduction for any contributions made on a salary reduction basis and excluded
from income pursuant to Sections 125 or 402(e)(3) of the Code and prior to
reduction for amounts deferred under the Deferred Remuneration Plan.
Compensation shall include bonuses and overtime but shall exclude:
(a) Employer contributions under the SEPP or any plan qualified
under Section 401(a) of the Code (other than contributions excluded from
income pursuant to Section 402(e)(3) of the Code);
(b) amounts included in gross income as a result of the exercise of
a nonqualified stock option or a
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disqualifying disposition of stock acquired under an incentive stock
option;
(c) reimbursement for educational expenses and automobile expenses
and allowances;
(d) any imputed income resulting from the provision of group-ten or
split dollar life insurance to the Employee;
(e) living and moving allowances;
(f) severance payments and settlements;
(g) forgiveness of debt owed the Employer; and
(h) amounts paid pursuant to this Plan.
1.5. "Contribution Date" for any Year means the date the Trust fixes
for a contribution to be made under this Plan with respect to such Year pursuant
to Section 3.1, which date shall not be earlier than the Determination Date for
such Year. If the Trust does not separately fix such a date for any Year, the
Contribution Date for such Year will be the fourth business day following the
Determination Date for such Year.
1.6. "Deferred Remuneration Plan" means the Trustees' and
Executives' Deferred Remuneration Plan of Corporate Property Investors as in
effect from time to time.
1.7. "Determination Date" for any Year means the date that the Trust
makes a determination to make contributions under this Plan with respect to such
Year pursuant to Section 3.1.
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1.8. "Executive" means an employee (whether or not an officer) of
the Trust whose Compensation is in excess of the dollar limit on pay that may be
taken into account under the SEPP for any particular Year pursuant to Code
Section 408(k)(3) (as adjusted by the Secretary of the Treasury or his delegate
in accordance with Section 408(k)(8) of the Code).
1.9. "Insurance" means an annuity, life insurance policy or other
similar investment vehicle approved by the Committee.
1.10. "Investment Credits" of a Participant at any time means the
sum of (a) the amount of any uninvested balance in such Participant's
Investment Credit account at such time and (b) the value of investments in such
Participant's Investment Credit account at such time.
1.11. "Investment Options" means the investments (none of which
shall be a partnership) designated by the Committee pursuant to Section 3.2(a)
or, if the Committee should not have designated Investment Options pursuant to
Section 3.2(a), the investment options available to participants under the
Deferred Remuneration Plan.
1.12. "Quarter" means the four consecutive three-month periods of
any Year of the Trust, with the first period beginning on the first day of such
Year.
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1.13. "Participant" means an Executive who is eligible under Article
II or who was so eligible and whose Investment Credits have not been fully
distributed.
1.14. "Plan" means this Amended and Restated Supplemental Executive
Retirement Plan of Corporate Property Investors as set forth in this document,
as it may be further amended from time to time.
1.15. "SEPP" means the Corporate Property Investors Simplified
Employee Pension Plan as in effect from time to time.
1.16. "Termination of Service" means the termination (by death or
otherwise) of a Participant's service with the Trust.
1.17. "Trust" means Corporate Property Investors, a Massachusetts
business trust.
1.18. "Year" means the calendar year.
The masculine pronoun, wherever used herein, shall include the
feminine pronoun, unless the context clearly indicates a different meaning.
ARTICLE II
PARTICIPATION
Each Executive shall be eligible to participate in the Plan for any
Year provided that he was or would be eligible to share in the contribution, if
any, made under the SEPP for such Year.
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ARTICLE III
CONTRIBUTIONS AND ACCOUNTS
3.1 Contributions. For each Year after 1992, the Trust shall
determine whether a contribution will be made under the Plan for the Year. Such
determination need not be made prior to the end of such Year. If the Trust
determines that a contribution will be made for a Year, there shall be
contributed on behalf of each Participant an amount under this Plan equal to (a)
reduced by (b):
(a) 7-1/2% of the Participant's Compensation for such Year up to the
taxable wage base determined under Section 230 of the Social Security Act
with respect to determining taxes under Code Section 3101(a) for such Year
plus 11% of his Compensation for such Year in excess of such taxable wage
base; reduced by
(b) the amount contributed on the Participant's behalf under the
SEPP for such Year and in the case of a Participant who has had
compensation deferred under the Deferred Remuneration Plan for such Year,
any contribution to such plan by the Trust equivalent to amounts that
would have been contributed under the SEPP on behalf of the Participant
for such Year if such compensation had not been so deferred.
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Such contributions shall be allocated to Investment Credit accounts
established for the Participants' benefit as of the Contribution Date.
Notwithstanding the foregoing provisions of this Section 3.1, a
Participant entitled to a contribution for any Year may elect, prior to
the Contribution Date for such Year, that such contribution will be paid
to him in cash on such Contribution Date. Such election will be honored
only to the extent that the Participant furnishes evidence satisfactory to
the Committee that the balance of such payment, after deductions for taxes
imposed thereon (assuming that such taxes will be imposed at the highest
marginal rates applicable to individuals living and working in the locales
lived and worked in by such Participant), will be used to purchase new
Insurance or maintain Insurance in effect. Unless the Committee shall
require otherwise, "evidence satisfactory to the Committee" shall consist
of a written description of the Insurance to be purchased or maintained,
including the premium required to purchase or maintain it, and a written
undertaking or representation of the Participant that the payment made
under this paragraph either will be used to reimburse the Participant for
paying such premium or will be applied to the prompt payment of such
premium. To the extent a Participant's contribution is paid to him in
cash, he will have no rights to any benefits provided under the Plan.
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3.2 Investment of Contributions. (a) At the time an Executive
becomes a Participant, he shall elect in writing his choice of Investment
Options and the amount to be invested in each such Investment Option. The
Committee shall inform, 30 days prior to the beginning of each Year or as soon
thereafter as administratively practicable, each Participant of the Investment
Options available for such Year.
(b) If a Participant shall fail to elect an Investment Option, he
shall be deemed to have elected that his contributions be invested in a money
market fund selected by the Committee. Any election pursuant to this Section 3.2
may be changed in accordance with Section 4.2.
3.3. Distributions. A Participant's Investment Credits shall be
distributable in the manner and subject to the conditions set forth in Article
V.
ARTICLE IV
ACCOUNTS
4.1. Investment Credits. (a) Until a Participant's Investment Credit
account is invested as hereinafter provided, any uninvested balance in a
Participant's Investment Credit account shall be credited as of the end of each
month in each Year with an interest equivalent for such month which shall be an
amount equal to the uninvested balance in a Participant's Investment Credit
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account at the end of the prior month multiplied by a rate equal to (i) the
number of days in such month during which the uninvested balance in a
Participant's Investment Credit account was not invested divided by (ii) 360,
and the quotient thereof multiplied by the average of the prime or base rate of
interest of Citibank, N.A., New York, New York, on the first and last day of the
current month.
(b) Subject to Section 4.3, the uninvested balance in a
Participant's Investment Credit account shall be invested by the Committee or
its designee, at such intervals as the Committee deems practicable, in the
Investment Options selected by such Participant pursuant to Section 3.2,
provided that the aggregate purchase price (including brokerage commissions and
any other transaction costs) of such investments shall be approximately equal to
the amount of such uninvested balance.
(c) The Investment Credit account of a Participant shall be credited
with the proceeds (net of expenses of sale and any taxes) of any sale or
exchange of investments in such account and with any dividends or other income
received with respect to such investments and shall be debited with the value of
any investments that are sold or exchanged. Until such credits are reinvested in
the Investment Option from which they arose or as otherwise directed by the
Participant pursuant to Section 4.2(a), they shall be added to the uninvested
balance of such Participant's
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Investment Credit account and shall earn interest equivalents as provided in
Section 4.1(a).
4.2. Changes in Investments. (a) A Participant may, by notice to the
Committee, change the manner in which his credits are accumulated by electing to
change all or part of the Investment Options in his Investment Credit account.
(b) Any change of election provided in Section 4.2(a) shall be
effected by filing an election in writing with the Committee at any time to be
effective as soon as practicable thereafter subject to any restrictions imposed
by the Committee; provided, however, that elections which relate to either
increasing or decreasing a Participant's investment in shares of the Trust in
his Investment Credit account may only be effected by filing an election form
with the Committee not later than 15 days prior to the expiration of the first
Quarter to be effective as of the first day of the second Quarter.
4.3. Committee Discretion. Notwithstanding anything contained in the
Plan, the Committee shall determine in its sole discretion whether actually to
invest a Participant's contributions in an Investment Option selected by a
Participant pursuant to Section 3.2. If the Committee determines that a
Participant's contributions shall not actually be invested in an Investment
Option, the amount of a Participant's Investment Credits shall, for all purposes
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of the Plan, be determined as if the amount of the Participant's allocations had
actually been invested in the Investment Option in the manner described in this
Article IV.
ARTICLE V
VESTING AND DISTRIBUTIONS
5.1 Vesting. The Investment Credits of a Participant shall be fully
vested and nonforfeitable at all times.
5.2 Distribution. (a) Except as provided in paragraph (b) below, the
Investment Credits of a Participant shall be distributed to such Participant in
15 annual installments commencing on (i) the first Tuesday following the end of
the Year in which his Termination of Service occurs or as soon thereafter as
practicable or (ii) if a Participant has a valid distribution election in effect
pursuant to paragraph (b) (ii) below, the first Tuesday of the Year specified in
such distribution election or as soon thereafter as practicable.
(b) A Participant may, in writing, also elect (i) the number of
annual installments over which his or her Investment Credits shall be
distributed after the Participant's Termination of Service (including an
election to have all such credits distributed in a single installment) and/or
(ii) the Year that distribution of the
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Investment Credits shall commence; provided, however, that if the Participant's
Termination of Service has not occurred by the first day of such specified Year
the election under this clause (ii) shall be null and void. Such election may be
made at the time the Executive becomes a Participant or at any time thereafter;
provided, however, that no such election shall be effective unless it is made at
least 12 months prior to his or her Termination of Service. Notwithstanding
anything contained herein to the contrary, if a Participant also participates in
the Trustees' and Executives' Deferred Remuneration Plan of Corporate Property
Investors, his Investment Credits shall be paid under the same distribution
method as his cash and investment credits are paid under such plan.
(c) Except as provided in Section 5.3, the amount of each
installment of the Investment Credits to be distributed to a Participant shall
equal (i) the sum of such Participant's Investment Credits on the close of the
business day next preceding the day of distribution divided by (ii) the total
number of annual installments to be distributed to such Participant less the
number of annual installments previously distributed to such Participant.
(d) Distribution of Investment Credits shall be made in cash or in
kind, as selected by the Committee, and, if in kind, by delivery of whole shares
of the investments in such Participant' s Investment Credit account (net of any
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expenses) and by payment of the balance, if any, in cash with the last
installment.
5.3. Committee Discretion. The Committee may, with the consent of
the person or persons then entitled to receive distributions, make changes in
the time, rate or medium of distribution of all or part of the Investment
Credits.
5.4. Death Benefits. (a) Any Investment Credits or remaining
undistributed installments thereof that become distributable after the death of
a Participant shall be distributed in installments as provided in this Article V
to such person or persons, or the survivors thereof, including corporations,
unincorporated associations or trusts, as the Participant may have designated in
a writing delivered to the Committee unless the Participant shall have elected
that any remaining amounts shall be paid to such person or persons or to the
Participant's estate in a lump sum. The Participant may from time to time revoke
or change any such designation by a writing delivered to the Committee. If there
is no unrevoked designation on file with the Committee at the time of the
Participant's death, or if the person or persons designated therein shall have
all predeceased the Participant or otherwise ceased to exist, such distribution
shall be made to the Participant's estate in a lump sum. If the person or
persons designated by the Participant shall survive the Participant but shall
die before receiving all
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of such distributions, the balance thereof payable to such deceased distributee
shall, unless the Participant's designation provides otherwise, be distributed
to such deceased distributee's estate in a lump sum.
(b) If the death of the Participant occurs after his Termination of
Service, the number of installments remaining to be paid shall be the number
that otherwise would have been distributed to the Participant.
ARTICLE VI
ADMINISTRATION
6.1. Committee. The Plan shall be administered by the Committee.
6.2. Rules. The Committee shall from time to time establish rules
for the administration of the Plan that are not inconsistent with the provisions
of the Plan.
6.3. Authority of the Committee. All determinations of the
Committee, including, but without limitation, the determination of the Committee
as to any disputed question arising under the Plan, including all questions of
construction and interpretation, shall be final, binding and conclusive upon all
persons. Without limiting the generality of the foregoing, the determination of
the Committee as to whether a Participant has had a Termination of Service and
the date thereof shall be final, binding and conclusive upon all persons.
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6.4. Acknowledgments and Distributions. The acknowledgment by the
Committee of an assignment or pledge made in accordance with the provisions of
Section 8.3 and any distribution by the Committee to the assignee or pledgee
shall be final, binding and conclusive upon all persons and shall relieve the
Trust and the Committee of any liability or obligation to any other person or
persons with respect to such distribution. As a condition to such acknowledgment
or distribution, the Committee may require the submission of such statements,
opinions, orders, certificates, resolutions or other instruments, documents,
consents or evidence, as the case may be, as either of them, in its sole
discretion, shall determine to be necessary or appropriate.
6.5. Legal Counsel. The Committee may consult with legal counsel,
who may be counsel for the Trust or other counsel, with respect to its
obligations or duties hereunder, or with respect to any action or proceeding or
any question of law, and shall not be liable with respect to any action taken or
omitted by it in good faith pursuant to the advice of such counsel.
6.6. Incompetency. If the Committee shall find that any person to
whom any payment is payable under the Plan is unable to care for his affairs
because of illness or accident, or is a minor, the Committee may direct that any
payment due (unless a prior claim shall have been made for such payment by a
duly appointed legal representative) shall
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be paid to his spouse, a child, a parent or other blood relative. Any payment so
made shall be a complete discharge of the liabilities of the Trust for that
payment.
ARTICLE VII
AMENDMENT AND TERMINATION
The Committee may, in its absolute discretion, without notice, at
any time and from time to time, modify or amend, in whole or in part, any or all
of the provisions of the Plan, or suspend or terminate it entirely, provided,
that no such modification, amendment, suspension or termination may, without his
consent, apply to or affect the payment or distribution to any Participant or
adversely affect the right of any Participant to any Investment Credits credited
to him for any Year ended prior to the effective date of such modification,
amendment, suspension or termination. Notwithstanding the preceding sentence, at
all times when Investment Credits are held under the Plan, the Committee shall
permit such Investment Credits to be invested pursuant to one or more Investment
Options that provides a reasonable rate of return.
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ARTICLE VIII
GENERAL PROVISIONS
8.1. Funding. Distributions under the Plan shall be made solely from
the general assets of the Trust, and a Participant's interest in his Investment
Credit accounts shall be that of a general unsecured creditor. No Participant or
any other person shall have any interest in any fund or in any specific asset or
assets of the Trust by reason of any Investment Credits or interest equivalents,
dividend equivalents or other income credited to him hereunder, nor the right to
exercise any of the rights or privileges of an owner with respect to any
investment credited to his Investment Credit account, nor any right to receive
any distribution under the Plan except as and to the extent expressly provided
in the Plan.
8.2. No Guarantee of Employment. Neither the adoption nor the
amendment of the Plan, nor any action of the Board of Trustees or the Committee
shall be held or construed to confer on any person any legal right to be
continued in the employ of the Trust.
8.3. Nonalienation. No Participant shall have the right to assign,
pledge or otherwise dispose of (except as provided in Section 5.4) any
Investment Credits nor shall the Participant's interest therein be subject to
garnishment, attachment, transfer by operation of law, or any legal process; nor
shall any person entitled to receive
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Investment Credits or remaining undistributed installments thereof, which become
distributable after the death of a Participant in accordance with Section 5.4,
have the right to assign or pledge any such credits or remaining undistributed
installments except to the extent that the executor or administrator of a
Participant's estate may exercise such right as hereinafter in this Section 8.3
provided. If and to the extent that other assets of a Participant's estate are
not sufficient or available for the purpose of paying estate and other death
taxes or other obligations of his or her estate, the executor or administrator
thereof may, if so authorized by the terms of the Participant's will or by a
court having jurisdiction of his or her estate or otherwise by operation of law,
assign or pledge, to the extent required to secure borrowings made to pay such
taxes or obligations, the Investment Credits or the remaining undistributed
installments thereof, including the interest equivalents, dividends and other
income (all of which together are hereinafter in this sentence referred to as
"installments"), which become distributable after the Participant's death to
his or her estate, provided that (a) the installments so assigned or pledged
shall be those which first become payable, and (b) the assignment or pledge of
installments of Investment Credits shall constitute an irrevocable direction for
the Committee's investment of the Investment Credits so assigned or pledged in a
money market
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fund selected by the Committee. Any such assignment or pledge, and the exercise
of the election provided in the preceding sentence, may be made, if at all, only
within the two-year period beginning with the date of the Participant's death.
8.4. Applicable Law. The Plan shall be construed in accordance with,
and governed by, the laws of the State of New York.